NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States
Reports.Readers are
requested to notify the Reporter of Decisions, Supreme Court of
the United States, Washington, D. C. 20543, of any
typographical or other formal errors, in order that corrections
may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED
STATES

No.
03674

KEYSE G. JAMA, PETITIONER v.
IMMIGRATIONAND CUSTOMS ENFORCEMENT

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OFAPPEALS FOR THE EIGHTH CIRCUIT

[January 12, 2005]

Justice Scalia
delivered the opinion of the Court.

When an alien is found ineligible to
remain in the United States, the process for selecting the
country to which he will be removed is prescribed by 8 U.S.C. §
1231(b)(2). The question in this case is whether this
provision prohibits removing an alien to a country without the
explicit, advance consent of that countrys
government.

I

Petitioner Keyse Jama was born in
Somalia and remains a citizen of that nation. He was admitted
to the United States as a refugee, but his refugee status was
terminated in 2000 by reason of a criminal conviction. See
Jama v. INS, 329 F.3d 630, 631 (CA8 2003). The
Immigration and Naturalization Service (INS) brought an action
to remove petitioner from the United States for having
committed a crime involving moral turpitude. Ibid.; see
8 U.S.C. §
1182(a)(2)(A)(i)(I), 1229a(e)(2)(A). In the administrative
hearing, petitioner conceded that he was subject to removal,
although he sought various forms of relief from that
determination (adjustment of status, withholding of removal,
relief under the Convention Against Torture, and asylum). He
declined to designate a country to which he preferred to be
removed. The Immigration Judge ordered petitioner removed to
Somalia, his country of birth and citizenship. The Board of
Immigration Appeals affirmed that determination, and petitioner
did not seek review in the Court of Appeals.

Instead, petitioner instituted
collateral proceedings under the habeas statute, 28 U.S.C. §
2241 to challenge the designation of Somalia as his
destination. He filed his petition in the United States
District Court for the District of Minnesota, alleging that
Somalia has no functioning government, that Somalia therefore
could not consent in advance to his removal, and that the
Government was barred from removing him to Somalia absent such
advance consent. The District Court agreed that petitioner
could not be removed to a country that had not consented in
advance to receive him, Jama v. INS, Civ. File
No. 011172(JRT/AJB) (Mar. 31, 2002), p. 10, App. to
Pet. for Cert. 51a, but a divided panel of the Court of Appeals
for the Eighth Circuit reversed, holding that §1231(b)(2)
does not require acceptance by the destination country. 329
F.3d, at 633635. We granted certiorari. 540 U.S. 1176
(2004).

II

Section 1231(b)(2), which sets out the
procedure by which the Attorney General1 selected petitioners
destination after removal was ordered, provides as follows:

(2) Other aliens.Subject to paragraph (3)

(A) Selection of country by alien.Except as
otherwise provided in this paragraph

(i) any alien not described in paragraph (1) who has
been ordered removed may designate one country to which the
alien wants to be removed, and

(ii) the Attorney General shall remove the alien to the
country the alien so designates.

(B) Limitation on designation.An alien may
designate under subparagraph (A)(i) a foreign territory
contiguous to the United States, an adjacent island, or an
island adjacent to a foreign territory contiguous to the United
States as the place to which the alien is to be removed only if
the alien is a native, citizen, subject, or national of, or has
resided in, that designated territory or island.

(C) Disregarding designation.The Attorney General
may disregard a designation under subparagraph (A)(i)
if

(i) the alien fails to designate a country
promptly;

(ii) the government of the country does not inform the
Attorney General finally, within 30 days after the date the
Attorney General first inquires, whether the government will
accept the alien into the country;

(iii) the government of the country is not willing to
accept the alien into the country; or

(iv) the Attorney General decides that removing the
alien to the country is prejudicial to the United States.

(D) Alternative country.If an alien is not
removed to a country designated under subparagraph (A)(i), the
Attorney General shall remove the alien to a country of which
the alien is a subject, national, or citizen unless the
government of the country

(i) does not inform the Attorney General or the alien
finally, within 30 days after the date the Attorney General
first inquires or within another period of time the Attorney
General decides is reasonable, whether the government will
accept the alien into the country; or

(ii) is not willing to accept the alien into the
country.

(E) Additional removal countries.If an alien is
not removed to a country under the previous subparagraphs of
this paragraph, the Attorney Gen-eral shall remove the
alien to any of the followingcountries:

(i) The country from which the alien was admitted to
the United States.

(ii) The country in which is located the foreign port
from which the alien left for the United States or for a
foreign territory contiguous to the United States.

(iii) A country in which the alien resided before the
alien entered the country from which the alien entered the
United States.

(iv) The country in which the alien was born.

(v) The country that had sovereignty over the
aliens birthplace when the alien was born.

(vi) The country in which the aliens birthplace
is located when the alien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to
remove the alien to each country described in a previous clause
of this subparagraph, another country whose government will
accept the alien into that country.

(F) Removal country when United States is at
war.When the United States is at war and the Attorney
General decides that it is impracticable, inadvisable,
inconvenient, or impossible to remove an alien under this
subsection because of the war, the Attorney General may remove
the alien

(i) to the country that is host to a government in
exile of the country of which the alien is a citizen or subject
if the government of the host country will permit the
aliens entry; or

(ii) if the recognized government of the country of
which the alien is a citizen or subject is not in exile, to a
country, or a political or territorial subdivision of a
country, that is very near the country of which the alien is a
citizen or subject, or, with the consent of the government of
the country of which the alien is a citizen or subject, to
another country. Immigration and Nationality Act,
§241(b)(2), as added by Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), §305(a)(3),
110 Stat. 3009600 to 3009607.

The statute thus provides four consecutive removal commands.
(1) An alien shall be removed to the country of his choice
(subparagraphs (A) to (C)), unless one of the conditions
eliminating that command is satisfied; (2) otherwise he shall
be removed to the country of which he is a citizen
(subparagraph (D)), unless one of the conditions eliminating
that command is satisfied; (3) otherwise he shall be removed to
one of the countries with which he has a lesser connection
(clauses (i) to (vi) of subparagraph (E)); or (4) if that is
impracticable, inadvisable or impossible, he shall
be removed to another country whose government will
accept the alien into that country (clause (vii) of
subparagraph (E)). Petitioner declined
to designate a country of choice, so the first step was
inapplicable. Petitioner is a citizen of Somalia, which has
not informed the Attorney General of its willingness to receive
him (clause (i) of subparagraph (D)), so the Attorney General
was not obliged to remove petitioner to Somalia under the
second step. The question is whether the Attorney General was
precluded from removing petitioner to Somalia under the third
step (clause (iv) of subparagraph (E)) because Somalia had not
given its consent.

A

We do not lightly assume that Congress
has omitted from its adopted text requirements that it
nonetheless intends to apply, and our reluctance is even
greater when Congress has shown elsewhere in the same statute
that it knows how to make such a requirement manifest. In all
of subparagraph (E), an acceptance requirement appears only in
the terminal clause (vii), a clause that the Attorney General
may invoke only after he finds that the removal options
presented in the other six are impracticable,
inadvisable, or impossible. Clauses (i) through (vi)
come firstin the statute and in the process of selecting
a country. And those six clauses contain not a word about
acceptance by the destination country; they merely direct that
the Attorney General shall remove the alien to any
one of them.

Effects are attached to nonacceptance
throughout the rest of paragraph (2), making the failure to
specify any such effect in most of subparagraph (E)
conspicuousand more likely intentional. Subparagraph (C)
prescribes the consequence of nonacceptance in the first step
of the selection process; subparagraph (D) does the same for
the second step; and clause (vii) of subparagraph (E) does the
same for the fourth step.2 With respect to the third step, however, the
Attorney General is directed to move on to the fourth step only
if it is impracticable, inadvisable, or impossible to
remove the alien to each country described in the third
step. Nonacceptance may surely be one of the factors
considered in determining whether removal to a given country is
impracticable or inadvisable, but the statute does not give it
the dispositive effect petitioner wishes.

Petitioner seizes upon the word
another in clause (vii) as a means of importing the
acceptance requirement into clauses (i) through (vi). He
argues that if the last-resort country is another
country whose government will accept the alien, then
the countries enumerated in clauses (i) through (vi) must
also be countries whose governments will accept
the alien. That stretches the modifier too far. Just
last Term, we rejected an argument much like petitioners,
noting that it ran contrary to the grammatical rule
of the last antecedent, according to which a limiting
clause or phrase should ordinarily be read as modifying
only the noun or phrase that it immediately follows.
Barnhart v. Thomas, 540 U.S. 20, 26
(2003). There, a statute referred first to a claimants
previous work and then to any other kind of
substantial gainful work which exists in the national
economy; under the rule of the last antecedent, we
declined to read the limiting clause which exists in the
national economy into the term previous work.
Id., at 2628 (emphasis deleted); accord,
FTC v. Mandel Brothers, Inc.,359 U.S. 385,
389390 (1959). We thus did not treat any
other as the apparently connecting modifier
that the dissent here thinks another to be,
post, at 4.3

Nor does the structure of
subparagraph (E) refute the inference derived from the
last-antecedent rule. Each clause is distinct and ends with a
period, strongly suggesting that each may be understood
completely without reading any further.4 And as we have already noted,
it is not necessary to turn to the acceptance language of
clause (vii) to find the conditions under which the Attorney
General is to abandon the third step and move to the fourth,
the last-resort option of any willing country. The Attorney
General must do so if in his judgment it would be
impracticable, inadvisable, or impossible to remove the
alien to each country described in clauses (i) to (vi).
This allows the Attorney General to take both practical and
geopolitical concerns into account when selecting a destination
country (and accords with the similar flexibility to pass over
inappropriate countries that the statute gives the Attorney
General at the other steps, see infra, at 13).
Petitioners reading would abridge that exercise of
Executive judgment, effectively deeming the removal of an alien
to any country to be per se impracticable,
inadvisable, or impossible absent that countrys
advance acceptance, even though in many casessuch as this
oneit is nothing of the sort. (Removing an alien to
Somalia apparently involves no more than putting the alien on
one of the regularly scheduled flights from Dubai or Nairobi,
and has been accomplished a number of times since
petitioners removal proceeding began. App. 3640
(declaration of detention enforcement officer Eric
ODenius).) Even without advance consultation, a
country with a functioning government may well accept a removed
alien when he is presented at the border or a port of entry;
the absence of advance consent is hardly synonymous with
impracticability or impossibility.5

B

Petitioner contends that even if no
acceptance requirement is explicit in the text, one is manifest
in the entire structure of §1231(b)(2). The Attorney
General may not remove an alien to a country under subparagraph
(A) or (D) without that countrys consent, petitioner
reasons, so he must be barred from circumventing that
limitation by removing the same alien to the same country under
subparagraph (E). The dissent rests its argument only on the
existence of an acceptance requirement in step two
(subparagraph (D)) and not in step one (subparagraphs (A)
through (C)).6

We note initially a point that applies
to both petitioners and the dissents positions: the
circumvention argument requires that the country
the Attorney General selects at step threehere, the
country of birth under clause (iv) also be the country of
citizenship that was disqualified at step two for failure to
accept the alien. That will sometimes be true, yet the reason
step three exists at all is that it will not always be
true. (Indeed, in petitioners case, several of the
clauses of subparagraph (E) describe Kenya, not Somalia.)
Despite this imperfect overlap, petitioner and the dissent seek
to impose an acceptance requirement on all removals
under step three, in the name of preventing the Attorney
General from circumventing step two in the cases
where a step-three country is also the country of
citizenship.

The more fundamental defect in
petitioners argument, which appeals to a presumed
uniformity of acceptance requirement throughout
§1231(b)(2), is that its premise is false. It is simply
not true that the Attorney General may not remove an alien to a
country under subparagraph (A) or (D) without that
countrys consent. Subparagraph (C) specifies that the
Attorney General may disregard the aliens
subparagraph (A) designation if the designated countrys
government proves unwilling to accept the alien or fails to
respond within 30 days. The word may customarily
connotes discretion. See, e.g., Haig v.
Agee,453 U.S.
280, 294, n. 26 (1981). That connotation is particularly
apt where, as here, may is used in contraposition
to the word shall: the Attorney General shall
remove an alien to the designated country, except that
the Attorney General may disregard the designation
if any one of four potentially countervailing circumstances
arises. And examining those four circumstances reinforces the
inappropriateness of reading may to mean
shall in subparagraph (C): Would Congress really
have wanted to preclude the Attorney General from removing an
alien to his country of choice, merely because that country
took 31 days rather than 30 to manifest its acceptance?
(Subparagraph (C), unlike subparagraph (D), offers no
reasonable time exception to the 30-day rule.)
Petitioner insists that a lack of advance acceptance is an
absolute bar to removal, but offers no plausible way of
squaring that insistence with the text of subparagraph (C).7

Nor does the existence of an
acceptance requirement at the fourth and final step create any
structural inference that such a requirement must exist at the
third. It would be a stretch to conclude that merely because
Congress expressly directed the Attorney General to obtain
consent when removing an alien to a country with which the
alien lacks the ties of citizenship, nativity, previous
presence, and so on, Congress must also have implicitly
required him to obtain advance acceptance from countries with
which the alien does have such ties. Moreover, if the
Attorney General is unable to secure an aliens removal at
the third step, all that is left is the last-resort provision
allowing removal to a country with which the alien has little
or no connectionif a country can be found that will take
him. If none exists, the alien is left in the same
removable-but-unremovable limbo as the aliens in
Zadvydas v. Davis, 533 U.S. 678 (2001),
and Clark v. Martinez, post, p. __, and under the
rule announced in those cases must presumptively be released
into American society after six months. If this is the result
that obtains when the country-selection process fails, there is
every reason to refrain from reading restrictions into that
process that do not clearly appearparticularly
restrictions upon the third step, which will often afford the
Attorney General his last realistic option for removal.

To infer an absolute rule of
acceptance where Congress has not clearly set it forth would
run counter to our customary policy of deference to the
President in matters of foreign affairs. Removal decisions,
including the selection of a removed aliens destination,
may implicate our relations with foreign powers and
require consideration of changing political and economic
circumstances. Mathews v. Diaz,426 U.S. 67, 81
(1976). Congress has already provided a way for the Attorney
General to avoid removals that are likely to ruffle diplomatic
feathers, or simply to prove futile. At each step in the
selection process, he is empowered to skip over a
country that resists accepting the alien, or a country that has
declined to provide assurances that its border guards will
allow the alien entry.

Nor is it necessary to infer an
acceptance requirement in order to ensure that the Attorney
General will give appropriate consideration to conditions in
the country of removal. If aliens would face persecution or
other mistreatment in the country designated under
§1231(b)(2), they have a number of available remedies:
asylum, §1158(b)(1); withholding of removal,
§1231(b)(3)(A); relief under an international agreement
prohibiting torture, see 8 CFR §§208.16(c)(4),
208.17(a) (2004); and temporary protected status, 8 U.S.C. §
1254a(a)(1). These individualized determinations strike a
better balance between securing the removal of inadmissible
aliens and ensuring their humane treatment than does
petitioners suggestion that silence from Mogadishu
inevitably portends future mistreatment and justifies declining
to remove anyone to Somalia.

C

Petitioner points to what he describes
as the settled construction of §1231(b)(2),
and asserts that Congress, in its most recent re-enactment of
the provision, should be deemed to have incorporated that
construction into law. We think not. Neither of the two
requirements for congressional ratification is met here:
Congress did not simply re-enact §1231(b)(2) without
change, nor was the supposed judicial consensus so broad and
unquestioned that we must presume Congress knew of and endorsed
it.

Removal is a new procedure created in
1996 through the fusion of two previously distinct expulsion
proceedings, deportation and exclusion.
IIRIRA, §304(a)(3), 110 Stat. 3009589, 8 U.S.C. §
1229a. Our immigration laws historically distinguished
between aliens who have entered the United States
and aliens still seeking to enter (whether or not they are
physically on American soil). See Leng May Ma v.
Barber,357
U.S. 185, 187 (1958). The distinction was carefully
preserved in Title II of the Immigration and Nationality
Act (INA): expelling an alien who had already entered required
a deportation proceeding, whereas expelling an alien
still seeking admission could be achieved through the more
summary exclusion proceeding. Ibid.; see Landon
v. Plasencia,459 U.S. 21,
2527 (1982) (cataloging differences between the two
proceedings). Aliens who, like petitioner, were allowed into
the United States as refugees were subject to exclusion
proceedings rather than deportation proceedings when their
refugee status was revoked. 8 CFR § 207.8
(1995).8

The cases on which petitioner relies
pertained to the INAs deportation provision, the
former 8 U.S.C. §
1253 (1952 ed.). United States ex rel. Tom Man v.
Murff, 264 F.2d 926 (CA2 1959); Rogers v.
Lu, 262 F.2d 471 (CADC 1958) (per curiam).9 In the two
cited cases, the Courts of Appeals barred deportation of aliens
to the Peoples Republic of China, a nation with which the
United States at the time had no diplomatic relations, without
that nations prior consent. Tom Man,
supra, at 928 (reading the acceptance requirement in
clause (vii) to cover clauses (i) to (vi) as well);
Rogers, supra, at 471.10 During the same period,
however, courtsincluding the Court of Appeals that
decided Tom Manwere refusing to read an
acceptance requirement into the exclusion provision, the former
8 U.S.C. §
1227 (1952 ed.). E. g., Menon v.
Esperdy, 413 F.2d 644, 654 (CA2 1969). Likewise, when
Congress amended the exclusion provision to expand the list of
possible destinationsadding three new categories and a
fourth, last-resort provision virtually identical to the
last-resort provision in current §1231(b)(2)(E)(vii), see
8 U.S.C. §
1227(a)(2) (1982 ed.)courts were generally skeptical
of efforts to read the acceptance requirement back into the
other clauses. E. g., Walai v. INS, 552
F. Supp. 998, 1000 (SDNY 1982); Amanullah v.
Cobb, 862 F.2d 362, 369 (CA1 1988) (Aldrich, J.,
concurring). But see id., at 365, and n. 4 (opinion of
Pettine, J.).

In other words, IIRIRA forged the new
removal procedure out of two provisions, only one of which had
been construed as petitioner wishes.11 And even the supposed
judicial consensus with respect to that one provision boils
down to the decisions of two Courts of Appealsone of
which was only a two-sentence per curiam that considered
step two, not step three. Rogers, supra, at 471;
see n. 9, supra.12 In the context of new §1231(b)(2),
the acceptance requirement is neither a settled judicial
construction nor one which we would be justified in presuming
Congress, by its silence, impliedly approved. United
States v. Powell,379 U.S. 48, 55, n. 13
(1964) (citation omitted). Even notwithstanding the
contradictory interpretation of the Board of Immigration
Appeals, see n. 10, supra, petitioners Circuit
authority is too flimsy to justify presuming that Congress
endorsed it when the text and structure of the statute are to
the contrary.13

***

For the foregoing reasons, the
judgment of the Court of Appeals is affirmed.

It is so ordered.

Notes

1. On March 1, 2003, the Department of
Homeland Security and its Bureau of Border Security assumed
responsibility for the removal program. Homeland Security Act
of 2002, §§441(2), 442(a), 116 Stat. 21922194,
6 U.S.C. §
251(2), 252(a) (2000 ed., Supp. II). Accordingly, the
discretion formerly vested in the Attorney General is
nowvested in the Secretary of Homeland Security. See
§551(d)(2). Be-cause petitioners removal
proceedings, including the designation ofSomalia as the
country of removal, occurred before this transfer of functions,
we continue to refer to the Attorney General as the relevant
decisionmaker.

2. The dissent contends that there are
only three steps, with all of subparagraph (E) constituting
only a single step, and that clause (vii)s acceptance
requirement therefore covers the entire subparagraph.
Post, at 1, n. 2 (opinion of Souter, J.). We think
not. Clause (vii) applies only after the options set out in
the third step are exhausted;it is nothing if not a
discrete, further step in the process. That stepfour is a
separate clause rather than a separate subparagraph is
im-material: step one, which is indisputably set out in
three subparagraphs, belies the dissents theory
that steps must precisely parallel subparagraphs.

3. Indeed, both other and
another are just as likely to be words of
differentiation as they are to be words of connection.
Here the word another serves simply to rule out the
countries already tried at the third step and referred to in
the conditional prologue of clause (vii) (If
impracticable, inadvisable, or impossible to remove the alien
to each country described in a previous clause of this
subparagraph, another country ). It is the fact of
that close earlier reference that makes it natural to say
another country here, whereas A country
is used at the outset of §1231(b)(1)(C)(iv), in which the
reference to each country described in a previous clause
of this subparagraph comes later and hence cannot serve
as an antecedent for an Another. The dissent makes
a mountain of this molehill, see post, at 56.
The dissent also finds profound meaning
in the fact that Congress changed the text from any
country in the 1996 legislation to another
country in the current version. The Court cannot
be right, it says, in reducing the 1996 amendment
to this level of whimsy. Post, at 7. But if one
lays the pre-1996 version of the statute beside the current
version, he will find numerous changes that are
attributable to nothing more than stylistic preference. To
take merely one example: Clause (E)(ii) of the current law,
which reads The country in which is located the foreign
port from which the alien left for the United States or for a
foreign territory contiguous to the United States,
previously read the country in which is located the
foreign port at which such alien embarked for the United States
or for foreign contiguous territory.8 U.S.C. §
1253(a)(2) (1994 ed.). The dissent must explain
whythese changes were insignificant whereas the change from
any country to another country was a
momentous limitation upon executive authority.

4. By contrast, in the cases on which the
dissent relies to rebut the last-antecedent inference, see
post, at 34, the structure cut the other way: the
modifying clause appeared not in a structurally discrete
statutory provision, but at the end of a single, integrated
listfor example,  receives, possesses,
or transports in commerce or affecting
commerce.  United States v.
Bass,404 U.S.
336, 337, 339 (1971); see also United States v.
Standard Brewery, Inc.,251 U.S. 210, 218
(1920); United States v. United Verde Copper Co.,196 U.S. 207, 213
(1905). We do not dispute that a word is known by its fellows,
but here the structure refutes the premise of fellowship.

5. The Government argued below that even
if clauses (i) through (vi) of subparagraph (E) require some
form of consent, the destination countrys acceptance of
the alien at the port of entry suffices. Brief for
Respondent-Appellant in No. 022324 (CA8), pp. 4346;
Jama v. INS, Civ. File No. 011172(JRT/AJB)
(D. Minn., Mar. 31, 2002), p. 14, App. to Pet. for Cert.
54a. Because clauses (i) through (vi) contain no acceptance
requirement, we need not pass on petitioners contention
that when §1231(b)(2) requires acceptance, only
advance acceptance will do.

6. The dissent asserts that we misdescribe
petitioners argument when we say it rests on both steps
one and two. Post, at 14, and n. 10. We note that
petitioner heads the relevant argument The Plain Language
Of The Statute Requires Acceptance At Every Step,
Brief for Petitioner 23 (emphasis added), and concludes his
description of the country-selection process with the assertion
that [t]he outer limit of the Attorney Generals
authority, which circumscribes the selection of any
country, is that the government of the country of removal
must be willing to accept the alien. Id., at 18
(emphasis added); see also id., at 1920.

7. The same incompatibility may exist with
regard to subparagraph (D), which prescribes that the Attorney
General shall remove the alien to his country of
citizenship unless that countrys government
declines to accept the alien or fails to manifest its
acceptance within a reasonable time. The Government urges that
the two exceptions preserve discretion for the Attorney
General: If one of those conditions exists, the Attorney
General is no longer required to remove the alien to that
country, but he may still do so. We need not resolve
whether subparagraph (D) affords this residual level of
discretion; subparagraph (C) is more than enough to demonstrate
that an acceptance requirement does not pervade the selection
process in the way petitioner claims, and other factors suffice
to refute the dissents more limited contention.
Rejection of the Governments argument is essential,
however, to the dissents position, see post, at
1517and the proper resolution is far from clear.

8. Petitioners application for
admission was deemed to have been made after his criminal
conviction, because he had not applied previously. See 8 U.S.C. §
1159(a)(1) (1994 ed.) (a refugee must appear for
inspection and examination for admission to the United
States as an immigrant in accordance with [§1227, the
former exclusion provision] one year after entry). The
district director conducted petitioners examination for
admission and found him inadmissible by reason of his
conviction. Record 97, 99 (Exh. F). This finding, under the
pre-1996 law, would have subjected petitioner to expulsion
in accordance with the exclusion provision, not the
deportation provision.

10. The dissent asserts that the Board of
Immigration Appeals adhered to a similar position.
Post, at 8. With rare exceptions, the BIA follows the
law of the circuit in which an individual case arises, see
Matter of K S, 20 I. & N. Dec.
715, 718 (1993); Matter of Anselmo, 20 I. & N.
Dec. 25, 3032 (1989). Thus, in a case arising in the
Second Circuit, the BIA adhered (in dictum) to that
courts decision in Tom Man. See Matter of
Linnas, 19 I. & N. Dec. 302, 306307 (1985).
But in a case decided after Tom Man and Rogers
but not controlled by those decisions, the BIA held to the
contrary: When designating a country in step three as a
place of deportation, there is no requirement that
preliminary inquiry be addressed to the country to which
deportation is ordered . Matter of
Niesel, 10 I. & N. Dec. 57, 59 (1962) (emphasis
added).

11. The dissents assertion,
post, at 1011, that §1231(b)(2) descends
solely from the former deportation provision is, in the
relevant respect, erroneous. To be sure, the former exclusion
provision has its own exclusive descendant in §1231(b)(1),
but that applies only to aliens placed in removal proceedings
immediately upon their arrival at the border, see
§§1231(b)(1)(A), (c)(1), not to formerly excludable
aliens who, like petitioner, were paroled or otherwise allowed
into the country. Whereas previously some aliens who had been
allowed into the country were excluded and some deported, see
§§1227(a)(1), 1253(a) (1994 ed.), now all are
removed and their destination chosen under
§1231(b)(2), not (b)(1). Section 1231(b)(2) is thus a
descendant of the exclusion provision as well as the
deportation provision, and cases decided under the former
represent the relevant prior law no less than cases decided
under the latter. The dissent
repeatedly contends that Congress intended to make no
substantive change to the prior law when it enacted
§1231(b)(2). E. g., post, at 1011.
But on the dissents view the 1996 amendment worked rather
a large change: refugees like petitioner, who previously could
be expelled without acceptance (under former §1227), now
cannot. See n. 8, supra.

12. The additional dicta cited by the
dissent, post, at 8, do not lend any additional weight
to the argument that Congress ratified a settled judicial
construction. Dictum settles nothing, even in the court that
utters it.

13. In his brief on the merits,
petitioner raises the additional contentionnot presented
to, or decided by, the Court of Appealsthat removal to
Somalia is impermissible at any step of §1231(b)(2),
because the lack of a functioning central government means that
Somalia is not a country as the statute uses the
term. The question on which we granted certiorari in this
case, as phrased by petitioner himself, was as follows:
Whether the Attorney General can remove an alien to one
of the countries designated in 8 U.S.C. §
1231(b)(2)(E) without obtaining that countrys
acceptance of the alien prior to removal. Pet. for Cert.
i. That question does not fairly include whether Somalia is a
country any more than it fairly includes whether petitioner is
an alien or is properly removable; we will not decide such
issues today. See this Courts Rule 14.1(a); Lexecon
Inc. v. Milberg Weiss Bershad Hynes & Lerach,523 U.S. 26, 42, n. 5
(1998).